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42. We must mention that even this Court in Harkirat Singh has relied upon the very same passage from Redfern and Hunter on International Arbitration that has been relied upon by the Supreme Court in the case of EITZEN Bulk.

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43. Mr Dada, faced with all the aforesaid decisions of the Supreme Court submitted that all these decisions have been referred to a larger bench in the case of Union of India Vs. Hardy Exploration and Production (India) Inc. [(2018) 7 SCC 374]. He therefore submitted that the issue is still at large before the Supreme Court. Firstly, we must mention that merely because an issue has been referred to a larger bench will not in any way prevent us from deciding the present issue. In any event, after this judgement was reserved on 14th September, 2018, we found that the reference made to a larger bench in Hardy Exploration has been decided by a three Judge Bench of the Supreme Court vide its decision dated 25th September, 2018 [2018 SCC OnLine SC 1640]. In view thereof, and after we noticed the three Judge Bench of the Supreme Court in Hardy Exploration, we placed this matter on board on 25th October, 2018 to give an opportunity to the parties to address us on this decision, though earlier a full hearing was over and the judgment was reserved. Accordingly, Mr Dada as well as Mr Chinoy have addressed us on the decision of the larger bench of the Supreme Court in Hardy Exploration.

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44. The facts of Hardy Exploration would reveal that a challenge was laid before the Delhi High Court to the award made by the Arbitrators in Kuala Lumpur under section 34 of the Act. The challenge to the said award was contested mainly on the ground that the Courts in India did not have jurisdiction to entertain the challenge under section 34 of the Act. This contention was accepted by the learned Single Judge as well as the Division Bench of the Delhi High Court. This is how the matter first came up before the Supreme Court and was thereafter referred to the larger bench. The larger bench, whilst deciding Hardy Exploration, referred to all the judgments that we have been referred to herein and thereafter in paragraph 39 (of the SCC OnLine SC Report) inter alia noted that the terms "place" and "seat" are used interchangeably. When only the term "place" is stated and mentioned and no other condition is postulated, it is equivalent to "seat" and that finalizes the facet of jurisdiction. The Supreme Court further held that however, if a condition precedent is attached to the term "place", the said condition has to be satisfied so that the "place" can become equivalent to "seat". Paragraph 39 of the said judgment reads thus :-

136)."

"A 'determination' is a 'final judgment' for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken.""

45. What we find that is in the facts of the case in Hardy Exploration, the Supreme Court, after considering the arbitration clause and Article 20 of the UNCITRAL Model Law on International Commercial Arbitration, came to the conclusion that in the facts of that case, since only the venue was Kuala Lumpur and it was not the "seat", the Courts in India had jurisdiction to entertain the challenge the award under section 34 of the Act. We must mention here that in the case of Hardy Exploration the arbitration agreement / clause was completely silent on which law was to govern the arbitration Pg 46 of 51 COMMAPP181OF 2017.doc agreement. This is clear from paragraph 30 of this decision where the arbitration clause has been reproduced.

46. On reading paragraph 39 of this decision (and as reproduced by us above), we think that the controversy before us is now completely put to rest. In the facts of the present case, clause 15.1 clearly stipulates that the "place" of arbitration shall be New York or such other "place" as agreed to by the parties. It is not in dispute that the arbitration was initiated by the Appellant in New York and arbitration took place in New York. The award was also passed in New York. There was no condition precedent attached to the term "place" in clause 15.1. This being the case and as set out by the Supreme Court in paragraph 39 of its decision in Hardy Exploration, the term "place" of arbitration would be equivalent to "seat" of arbitration. We therefore find that even on the strength of this decision, the "seat" of arbitration in the facts before us was clearly New York. To put it differently, the "seat" of arbitration was not in India but was outside India. This being the case, Part - I of the Act was clearly excluded.